Applicant makes case that 'but for' accident she would not be as ill as she is - AB and State Farm

July 09, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AB and State Farm

Date of Decision: 2018-05-03
Heard Before: Adjudicator Charles Matheson

IRBs and CAT IMPAIRMENT: applicant has serious pre-existing medical conditions which worsened severely after the accident; applicant makes case that ‘but for’ the accident she would not be as ill as she is

AB was injured in a car accident on July 18, 2005. The accident occurred in a parking lot. All first responders including the police, ambulance and fire trucks showed up to the accident scene. AB explained that her hands were swollen, her chest was bruised by the seat belt and her back hurt upon arrival at the hospital.  She applied for and received statutory accident benefits from State Farm but when the parties were unable to resolve their disputes through mediation she applied for arbitration at the FSCO.

Issues:

1. Is AB entitled to receive income replacement benefits of $81.63 commencing November 13, 2008 and on-going?
2. Did AB sustain a catastrophic impairment within the meaning of the Schedule as a result of the accident?

Result:

1. AB is entitled to income replacement benefits commencing November 13, 2008 as a result of the July 18, 2005 motor vehicle accident.
2. AB has suffered a catastrophic impairment in accordance of the Schedule, in that she has been found to have a marked impairment in one or more spheres in accordance with the Guides.

AB has had two previous accidents, one in 1988 and the second in 1989 which resulted in back surgery on two discs, in 1991, and a subsequent diagnosis of chronic pain which lasted up to the 2005 accident. She a complete hysterectomy in 2003, which contributed to her pelvic pain, which continues beyond the 2005 accident. AB testified that she had been abused by her step-father from about the age of 11 to her teens, and had depression prior to the 2005 accident, and was taking medications for both the depression and the chronic pain.

AB testified that prior to the 2005 accident, she did her own shopping, house cleaning, cooking, and attended her place of worship on a regular basis, travelled, and had a full social life. She worked part time prior to the accident then went of STD after the accident and then LTD in November 2006. She owned and managed two rental properties until the accident when she sold them because she could not manage them any longer. Since the accident she takes a variety of medications for pain and depression and sleep. She does not sleep well and has nightmares about being in a car accident.

AB testifies she needs help with personal tasks now, food prep and laundry. Her mother and father help her daily. She no longer drives. Her sister has power of attorney and manages her finances. She can not longer concentrator and cannot read or write reports for work. She says her hands hurt too much to use a computer efficiently. She has trouble dealing with people and stressful situations.

In November 2011 AB had an inpatient stay at Homewood. In March 2012 she was admitted to hospital for an attempted suicide. She made a second suicide attempt after she had returned from her stay at CAMH. The other attempts to commit suicide have been choking events, with extra pills. Her stay at CAMH extended to 7 weeks in duration. She was subjected to Electroconvulsive Shock Therapy (“ECT”) as she was having nightmares and was screaming a lot. AB testified that the therapy was very painful and that she has suffered from memory loss as a side effect of the therapy. AB testified that she had not been admitted into any institution for her psychological problems or CAMH prior to the 2005 accident.

Her family testifies to and corroborated her testimony.

A Psychiatrist testified on behalf of AB and to the veracity and accuracy of his two reports. The first report was authored in response to a multi-disciplinary catastrophic determination by State Farm, which found AB was not catastrophically impaired, as per the meaning of the Schedule. The rebuttal report was dated October 3, 2008 found that AB’s level of impairment fell within the moderate range, which meant AB was not catastrophically impaired as per the Schedule. He also opined that AB was not competitively employable at the time of the report.

A second report prepared by the same psychiatrist dated March 31, 2014 noted a deterioration in AB from the previous assessment some 6 years earlier. He also considered the information from AB’s treating psychiatrist who opined that AB was very fragile before the 2005 accident. The second report concluded that AB currently meets criteria for the diagnosis of Posttraumatic Stress Disorder, Major Depressive Disorder (recurrent and severe) as well as Somatic Disorder with predominant pain, Substance Abuse Disorder. Secondary to the presence of a Somatic Symptom Disorder with predominant pain, her pain related impairments are rated as mental and behaviour impairments.

A psychologist testified on behalf of State Farm and testified as to the veracity and accuracy of his two assessments and the corresponding addendum reports. The doctor’s first assessment report was generated to comment on a proposed treatment plan where AB would be an in-patient at Homewood. The doctor found that the proposed treatment plan was reasonable and necessary. The second assessment report was generated to opine whether or not AB had suffered catastrophic impairments as a result of the July 18, 2005 accident. In regard to the second assessment he was unable to provide a rating in keeping with the Guides, and that he was unable to obtain a valid representation of AB’s mental status. Therefore, he could not provide AB with a catastrophic impairment rating, meaning if he could not say she’s catastrophic, the only conclusion then is that she’s not catastrophic, because he could not provide a Class rating within the four spheres of either mild, moderate or marked. He made it clear that he was not afforded the opportunity to re-exam AB in order to find different test results, or collateral information including the family doctor’s records, the treating psychiatrist’s records, the treating therapist’s records or information from family members at the time of his second catastrophic assessment.

On the basis of the evidence the Arbitrator determined that AB is unable to return to any type of strength job at this time. The prognosis is guarded. [AB] has been experiencing severe depression, hopelessness and pain since the subject accident. Her mental state would form a barrier to s successful return to work at this time.

State Farm argues that AB must establish that “but for” the accident of July 18, 2005, she would have returned to her employment at direct Energy or be working some other similar occupation for which she is reasonably suited by education, training or experience. State Farm submits that AB’s impairments are psychiatric / psychological in nature and would be what they are today even if the July 18, 2005 accident had not occurred. State Farm also submits that AB has never been motivated to work at anything else than on a part –time basis because she could not cope with anything more than that. AB has simply regressed into a role of being dependant upon and compliant with her family members.

In reply AB argues that State Farm’s position is based on speculation, and that there is no evidence that AB was declining prior to the accident, in fact the opposite is true. It is submitted that there is no medical evidence, or medical opinion, before the arbitrator that supports State Farm’s claim that AB’s condition was expected to deteriorate. There is no evidence or medical opinion that AB’s family’s behaviour in regards to the sexual abuse made her condition deteriorate.

On the preponderance of all the evidence, and on the balance of probabilities, AB’s arguments are the most persuasive. For these reasons the Arbitrator found that AB is entitled to income replacement benefits commencing November 13, 2008 as a result of the July 18, 2005 motor vehicle accident.

AB argues and relies on medical testimony which suggested that non-credible or atypical or invalid objective test results suggest that a definitive conclusion cannot be made based on the objective test results. Thus no conclusion in either the affirmative or the negative could be made.  

State Farm argues that AB suffered a series of physical and psychological issues in regards to her ability to work, cope at work with her supervisor, cope with her family in response to her sexual abuse allegations, and the threat of same to her niece, all of which are not related to this accident. Through a lengthy set of hypothetical scenarios State Farm argues that the psychiatrist agreed that one or all of the pre-existing psychiatric or psychological issues in themselves could have caused the decline of AB, therefore the pre-existing issues must have been the cause of the catastrophic determination, if there is such a determination. Further State Farm is relying on the fact that both the psychiatrist and psychologist acknowledge that both pre and post accident factors play a material role in her current psychiatric/ psychological condition.

On the preponderance of all the evidence, and on the balance of probabilities, AB’s arguments are the most persuasive.  AB is correct that there has not been any evidence that AB was on a downward trajectory in regard to her physical or mental and behaviour health or functioning. The inescapable and undisputed facts are that she was functioning as a productive member of society, prior to the accident, on all levels, including her family, work, socially and within her faith. As a result, the Arbitrator found that but for the accident, AB would not be in the position she is in today.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.